Changing the Rules in the Middle of the Game: The Ex Post Facto Clause and Clarifying State v. Reese

State v. Patton, No. 120,434, (Kan. Feb. 11, 2022).

Issue:  In State v. Reese, the Kansas Supreme Court held that courts should apply the version of Kansas’ DUI sentencing provisions—K.S.A. 8-1567—in effect at the time of sentencing, even if the statute changed since the offense occurred.  Dwayne Patton committed a DUI before, but was sentenced after, the statute’s 2018 amendments came into effect.  Do the 2018 amendments apply to Patton when the application of those amendments would increase his sentence? 

Answer:  No, the 2018 amendments to K.S.A. 8-1567 cannot be applied to defendants like Patton without violating the Ex Post Facto Clause of the United States Constitution. 

Facts:  K.S.A. 8-1567 informs sentencing courts as to “which convictions will count in determining whether to sentence a defendant as a first-time, second-time, third-time, or fourth-or-subsequent time offender.”  It also “provides progressively enhanced penalties for repeat offenders.”

Patton had two out-of-state DUIs prior to committing his second in-state DUI in 2016.  In 2016, the version of K.S.A. 8-1567 in effect directed courts to count out-of-state DUI convictions that “would constitute a crime” under K.S.A. 8-1567.  However, Patton was not sentenced until 2018, after the Kansas Legislature amended K.S.A. 8-1567.  The amended statute directed courts to count out-of-state DUI convictions that “would constitute an offense that is comparable” to a DUI under Kansas law.

Discussion:  The Ex Post Facto Clause of the United States Constitution is violated “when a statute applies to acts committed before the staute went into effect and applying the statute disadvantages the defendant.”  The disadvantage was sufficient here because “applying the 2018 amendments to Patton would increase the penalty for his offense after he committed it.”

This was because, under the 2016 version of K.S.A. 8-1567, Patton’s out-of-state DUI convictions would not count as prior convictions for sentencing purposes like they would under the amended statute.  

The Kansas Supreme Court clarified that while the general rule in Reese still stands, “a sentencing court should apply the version of [K.S.A. 8-1567] in effect at the time of sentencing unless the Legislature amended the statutory provisions after the offense was committed and that amendment increases the defendant’s penalty (or otherwise disadvantages the defendant as contemplated in Beazell [v. Ohio]).” Accordingly, the version of K.S.A. 8-1567 in effect when Patton committed his in-state DUI in 2016 applied to his sentencing. 

Key Authorities:

• State v. Patton, No. 120,434, (Kan. Feb. 11, 2022).
• Kan. Stat. Ann. 8-1567 (2020) (listing the elements of Kansas DUI law and providing sentencing guidelines pertaining to DUI convictions).
• State v. Reese, No. 106,703 (Kan. Aug. 29, 2014) (ruling that the DUI sentencing provisions in effect at the time of a defendant’s sentencing should apply, even if those provisions were not yet in effect when the defendant had committed the offense).
• U.S. Const. art. 1, § 10 (providing the Ex Post Facto Clause, which prohibits the government from passing criminal statutes that punish actions retroactively and, accordingly, from criminalizing conduct that was legal when performed).
• Beazell v. Ohio, 269 U.S. 167, 169–70 (1925) (describing three categories of statutes that would violate the Ex Post Facto Clause: (1) statutes that punish as a crime conduct that was innocent when a person committed it; (2) statutes that increase the punishment for a crime after its commission; and (3) statutes that deprive a person of a defense to a crime available when it was committed).